Opinion
As Modified Oct. 19, 1987.
Review Granted Jan. 7, 1988.
Previously published at 195 Cal.App.3d 301
Tibor I. Toczauer, Tarzana, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Mark Alan Hart, Supervising Deputy Atty. Gen., and Elaine F. Tumonis, Deputy Atty. Gen., for plaintiff and respondent.
L. THAXTON HANSON, Acting Presiding Justice.
INTRODUCTION
After pleading guilty to first degree burglary in violation of Penal Code section 459, defendant Robert Batista waived his right to a jury trial on the allegation that he was convicted of a prior residential burglary. The trial court found that allegation true, and sentenced defendant to the FACTS
All references to statutes are to the Penal Code unless otherwise specified.
On the afternoon of April 25, 1986, Margarita Carbajal returned to her apartment and discovered a man coming out of her bedroom. When she yelled at the intruder, he ran out the door towards the parking lot. Margarita's husband, who was parking the car, heard her cry for help. Her husband apprehended the intruder and secured him until the police arrived in response to Mrs. Carbajal's call.
A police investigation revealed that the middle part of the back door, where it is locked, had been broken. Defendant had a screwdriver on his person. Although it had not been reported to the police, Margarita later claimed that a ring was missing from the bedroom.
An information charging defendant with burglary was later amended to allege four prior convictions. At trial on August 1, 1986, the trial court granted defendant's demurrer to three of the alleged prior convictions. Defendant pleaded guilty to the first degree burglary charge, and requested a court trial on the prior conviction. Upon reviewing the trial record on the prior conviction, the trial judge determined it to be true. The judge held that defendant's prior plea of nolo contendere on a residential burglary fell within sections 667, subdivision (a) and 1192.7, and sentenced defendant to a five-year enhancement.
ISSUES
On appeal, defendant first contends that no evidence supports the judgment of conviction for burglary. Defendant also contends that the trial court erroneously sentenced him to a five-year enhancement for a prior conviction.
DISCUSSION
I.
Despite having pleaded guilty to first degree burglary, defendant now contends that no evidence supported the conviction, and that the trial court at the preliminary hearing committed reversible error by denying the defense motion to dismiss for lack of evidence.
Penal Code section 1237.5 states that "[n]o appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty ..., except where: (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk."
Because defendant has failed to comply with both of these exceptions, his order of appeal on this issue is not reviewable. Moreover, his guilty plea admits that sufficient evidence exists, precluding appeal on this ground. (People v. Meyer (1986) 183 Cal.App.3d 1150, 1157, 228 Cal.Rptr. 635; People v. Warburton (1970) 7 Cal.App.3d 815, 821, 86 Cal.Rptr. 894, cert. den. Warburton v. California (1971) 400 U.S. 1022, 91 S.Ct. 587, 27 L.Ed.2d 634.)
Defendant also contends that the trial court at the preliminary hearing erroneously denied a defense motion to dismiss for lack of evidence. Section 872, concerning the proof required at a preliminary hearing, states in part that if "it appears ... that a public offense has been committed, and there is sufficient cause to believe the defendant is guilty ...," he must be held to answer.
"At a preliminary hearing, the magistrate must decide only whether there is 'sufficient cause' to believe the defendant guilty of a probable offense. That phrase is generally equivalent to 'reasonable and probable cause'[,] which has been defined as such a state of facts as would lead a [person] of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." (People v. Orduno (1978) 80 Cal. The record reveals that the preliminary hearing produced sufficient evidence to bind defendant over to superior court. Neither the preliminary trial court nor the trial court erred, and we affirm the burglary conviction.
II.
On appeal, defendant contends that the trial court erroneously imposed a five-year enhancement for a prior conviction under sections 667, subdivision (a) and 1192.7.
The trial court found defendant's prior conviction to have been based on a nolo contendere plea, and also found that defendant admitted to a residential burglary. Based on this evidence, the trial court found the allegation that defendant had a prior conviction for residential burglary to be true, and sentenced defendant to an additional five years.
Under sections 667, subdivision (a) and 1192.7, a five-year enhancement may be imposed for every prior conviction for a "serious felony." The list of serious felonies in section 1192.7 includes "burglary of an inhabited dwelling house...."
In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the defendant received a five-year enhancement in addition to the sentence imposed for pleading guilty to a burglary charge. The complaint alleged defendant's three prior second degree burglary convictions, each described as residential burglary. As part of the plea bargain, defendant admitted that one of the priors was a residential burglary. (Id., at 830, 210 Cal.Rptr. 623, 694 P.2d 736.)
Citing People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, People v. Jackson, supra, 37 Cal.3d 826, 834, 210 Cal.Rptr. 623, 694 P.2d 736, set forth two propositions relevant to an enhancement for prior conviction: "(1) [P]roof of the prior conviction establishes only the minimum elements of the crime, even if the charging pleading contained additional, superfluous allegations; and (2) ... the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime." Jackson found that defendant's admission of the residential nature of the prior burglary conviction sufficient to support the enhancement.
In People v. Alfaro (1986) 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154, a defendant convicted of robbery received two five-year enhancements for prior convictions, one of which was for pleading guilty to burglary in violation of section 459. Alfaro stated that a "record of conviction" referred only to the judgment and to "matters necessarily adjudicated therein." "[T]he judgment in the [prior] burglary proceeding did not establish that defendant entered a residence. While the information so alleged, such entry was not an element of the crime." (Id., at 636, 230 Cal.Rptr. 129, 724 P.2d 1154.) Therefore, in finding the enhancement true, it was error for the trial court to have referred to the information charging defendant with entering a house.
In the case at bench, the September 17, 1982, abstract of judgment of the prior conviction reveals that defendant was convicted of second degree burglary. The only way the trial court could have concluded that defendant's prior conviction was for residential burglary was by going behind the record of conviction.
As in Alfaro, the 1982 abstract of judgment against Batista does not establish that the burglary occurred in a residence. Indeed, it suggests otherwise. Though it states that defendant Batista was convicted of "Burglary 2nd" in violation of section 459, that section does not distinguish between first and second degrees. Penal Code section 460 defined second degree burglary as involving all burglaries except those committed in the nighttime...." The People correctly point out that the California Supreme Court has granted review in several cases to reconsider issues raised in Jackson, Crowson, and Alfaro. We note Justice Malcolm Lucas' dissent in People v. Jackson, supra, 37 Cal.3d 826, 839-840, 210 Cal.Rptr. 623, 694 P.2d 736. There Justice Lucas argued in favor of reconsidering the Crowson proscription against "going behind" the elements of a prior offense to prove specifics of the defendant's conduct which have become relevant for enhancement purposes because of defendant's commission of a new offense. We further note that in the case at bench, both the information charging the defendant with the prior crime and the preliminary hearing transcript in the prior crime specify the burglary of a residence. These considerations may make the case at bench a suitable vehicle for the California Supreme Court to reconsider the Crowson principles in light of the obvious purpose of Penal Code section 667, and the passage of Proposition 8, enacted by the people in an attempt to stem a crime wave in which felons on probation and parole continue to pillage and plunder the residences of law-abiding citizens.
Penal Code section 460 states:
See People v. Bridge and Monzo, Supreme Court case No. S000912; People v. Guerrero, Supreme Court case No. Crim. 26174; People v. Harrell, Supreme Court case No. S000625; People v. Henning, Supreme Court case No. Crim. 26226; People v. McDonald, Supreme Court case No. S000358; People v. Scott, Supreme Court case No. Crim. 26225; People v. Smith, Supreme Court case No. Crim. 25206; and People v. Tyrell, Supreme Court case No. S000650; People v. Reynolds, Supreme Court case No. S000926; People v. Rose, Supreme Court case No. S001012; and People v. Smith, Supreme Court case No. S001177.
Current law nevertheless binds us to follow the precedent set forth in Alfaro, and under the compulsion of that case we must therefore hold that the trial court's imposition of the enhancement was erroneous, and must be reversed.
DISPOSITION
The judgment of conviction is affirmed. The judgment imposing the enhancement based on defendant's prior burglary conviction is reversed.
LUCAS and DEVICH, JJ., concur.
"1. Every burglary of an inhabited dwelling house or trailer coach as defined by the Vehicle Code, or the inhabited portion of any other building committed in the nighttime, is burglary of the first degree.
"2. All other kinds of burglary are of the second degree.
"3. This section shall not be construed to supersede or affect Section 464 of the Penal Code."